DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD
ANNEX

NAVY 

2 

WASHINGTON DC 20370-510

0

S

TRG
Docket No: 5500-00
26 February 2002

Dear

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10 of the United
States Code section 1552.

20 February 2002.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application -on  
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.

Your allegations of error and

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

You reenlisted in the Navy on 27 December 1995 for five years.
On 1 May 1996 you were counseled and warned concerning your
arrest by civil authorities on 18 March 1996 for driving under
the influence of alcohol with a blood alcohol content of
In a special performance evaluation for the period 1 December
1995 to 15 September 1996 you were assigned a 1.0 in the category
of military bearing/character.
promotion and retention.
(E-7).
ending 18 October 1996 indicated that you were an AEC and were
recommended for early promotion.

The detachment performance evaluation for the period

Subsequently, you were frocked to AEC

However, you were recommended for

 

.14%.

On 12 November 1996 a hotline complaint was filed concerning your
command's actions in a fraternization case, and its lack of
action in removing your name from the chief petty officer
selection list following your civilian conviction for drunk
Subsequently, the allegations made concerning the
driving.
command's handling of both cases were found to be
unsubstantiated.
your case, in part, as follows:

The investigating officer (IO) concluded in

. 

. The commanding officer (CO) removed the petty

. 
(The CO)
officer's (your) base driving privileges.
deemed that this petty officer, who was his 1995 Sea
Sailor of the Year, had potential for further service,
and enrolled him in the CAAC Level III program.
Upon
returning to the squadron from Level III the petty
No special
officer was issued a Page 13 warning.
evaluation was written as the civilian courts had not
completed action on his case.

Following his civilian conviction and

The petty officer was selected and promoted to Chief
Petty Officer prior to his civilian conviction or
sentencing.
sentence, the DUI was fully documented in his service
record.
He received the Page 13, suspension of base
driving privileges, CAAC Level III training, and an
evaluation of 15 September 1996 signed by the
Commanding Officer with a 1.0 in Military Bearing, a
comment on his civilian conviction for DUI, and a
Promotable Promotion Recommendation.

The IO concluded that the CO acted lawfully, properly and in
accordance with current regulations,

instructions an policies.

Because the report of the investigation did not include some
information or thoroughly address the original allegation, it was
decided on review to reopen the case and to review the
completion report.
allegations in your case to be substantiated.
in part, as follows:

IO's
The new investigation found the hotline

The new IO found,

 

The material evidence established not only that

He also pled guilty to DUI in April 1996,

(he) had a civilian conviction for DUI and hit and run
in 1996, but that he also had a prior civilian
conviction for DUI in 1990. . . . . . He plead guilty to
DUI in 1990.
in part, because his test result was  
legal limit in California.
plea bargain to also plead guilty to hit and run.
may have been a result of his fleeing the accident and
lying to the police officer about his conduct when he
was caught and returned to the scene by the neutral
civilian witness.

He was required by his 1996
This

.16; twice the

The evidence also established that (the CO) knew
AEl (A) had not one but two convictions for DUI at

that 
least as early as June 1996 . . . . . He was obviously
concerned with his choices as he only decided to frock
(him) on 16 September 1996 after discussing the issue

2

AEl (A) had actually been selected

with Captain (M).
for Chief Petty Officer on 12 July 1996. . . . . It might
be noted that the sole guidance provided to (the CO) by
his superior, CAPT (M), was that frocking a sailor with
two 
and (the CO's) judgment call.

DUI*s was technically correct, under Navy policy

CAPT 

(M) was not correct.

Frocking a service

. 

. 

. 

SECNAV and CNO policy.

members to Chief Petty Officer with DUI convictions is
contrary to 
. . . . . "There is a
"Zero Tolerance" of alcohol and other drug abuse.
. The judgment of commanders, commanding officers
. 
and officers in charge is paramount in enforcing Navy
alcohol and other drug abuse policy and ensuring proper
disposition of individual cases.
available evidence to determine whether alcohol or drug
abuse exists, and must respond to unacceptable behavior
or performance with appropriate corrective actions. . . .
Officers, chief petty officers, and all petty officers
by virtue of their rank and position, must lead by
example.
alcohol by those personnel is viewed as a grievous
failure to meet navy standards. (emphasis in text)

Any drug abuse or irresponsible use of

They must analyze all

Since you were convicted by DUI in April 1996 and frocked in
September, the new investigation also found that the original IO
was incorrect when he reported that you had been promoted prior
to the DUI conviction.
It was also noted that the original
investigation contained no mention of the hit and run charge.
The new IO stated as follows:

To verify the information and establish the

sequence of events, we contacted the San Diego county
Sheriff's Department on 18 and 21 November and
discussed the case with them.
(A) was arrested in February 1996 on five charges
including DUI and hit and run.
copies of the February 1996 Investigating Officer's
Narrative Report.
Detention Facility Report.
showed a prior arrest for DUI . . . . .

. . . . and DUI and hit and run

. . . . Their records also

They verified that  

They furnished us with

AEl

The IO concluded, in part, as follows:

. 

. 

. (The first  

IO's) completion report did not

meet the Inspector General's requirements for a
thorough investigation because it:
completely address the allegations; (2) omitted
material evidence;
and therefore,

(4) had invalid findings and

(1) did not

(3) contained misstatements of fact;

3

conclusions. . . . .

. 

AEl 

(A)'s April 1996 DUI and Hit and

(A)'s DUI history was not credible.

. (The CO's) testimony concerning his knowledge of
. 
AEl 
We reached
this conclusion in part because (the CO) submitted a
page 13 recording  
Run convictions and more importantly because (the CO)
signed 
document recorded a second DUI for (the  
one first class petty officer who he knew had been
selected as the Wing Sailor of the Year.
Further, at
the time the DAAR was signed,
the Squadron DAPA files
contained 
AEl (A)') medical record of 8 August 1990,
CAAC evaluation, that documented a DUI in 1990. . . . .

DAAR in June 1996.

(A)'s Amended 

CO's) number

AEl 

This

AEl 

"didn't stick in my 
It is not

Because (the CO) did not act to notify BUPERS of
(A)'s name remained on the
(The CO)

the second conviction,  
Chief's list when it was published in July.
stated that the second DUI
must have "dropped from my memory."
plausible that (the CO) overlooked or forgot these
significant reminders of  
his attention within such a short  
then however, it was not too late to prevent the
current 
(M) commented during our
interview that in late July, he and (the CO) had
discussed whether to frock  
DUIs.
CO's) command discretion.

CAPT's advice was it was a matter of (the

AEl (A) in view of the two

paod of time.

(A)'s two 

dilemma.

CAPT 

AEl 

The 

DUIs brought to

. . . .

mind" or

Even

(The CO) disregarded Navy policy in frocking  

(A) to Chief Petty Officer in view of his  
hit and run convictions.
to frock 

DUIs and the
Further, (the CO's) decision

AEl (A) contradicted his adverse evaluation.

AEl

.

. 

AEl (A) was not forthcoming about the status of his

. 
DUI or hit and run case.
He was deliberately vague
when discussing the case with the Commanding Officer
and Legal Officer and led them to believe his case was
on appeal, when it was not.

The IO recommended as follows:

. 

. (The CO) correct and resubmit  

. 
September 1996 evaluation . . . .

AEl 

(A)'s 15

.

. 

COMNAVAIRPAC forward a copy of this investigation
. 
to the COMNAVAIRSYSCOM Inspector General for review and
discussion with . . . . .
[AEl 
recommendation that the CO:

(A)'s current CO] with the

(1) recommend BUPERS remove AEC  

(A)'s name from
the Chief Pettv Officer Selection list and defrock him
and hit and run
in view of the-1990 DUI and 1996 DUI
convictions.

(2) issue 

. . . . . .

AEl (A) a Page 13 for

his 1990 DUI

(3) forward a copy of  

May 1996 to PERS-313Cl for inclusion
record.

. . . . .

AEl 

(A)'s

Page 13 dated 1
in his microfiche

COMNAVAIRPAC take
(M) 
,
against CAPT

appropriate administrative action
cAPT (H), and CDR  
a revised performance evaluation for the
to 15 September 1996 was submitted in June

Your record shows that
period 1 December 1995
1997.
This report states that it was submitted to document
withdrawal of your recommendation for promotion based on the
Apparently in a related action, the ending
civil conviction.
date of that report was changed to 18 October 1996 because the
originally submitted report for that short period indicated that
you were a frocked chief petty officer.

(L)

On 9 July 1997, the Bureau of Naval Personnel informed you that
they were considering removing your name from the chief petty
officer selection list.
that it was unreasonable to take such strong administrative
action against you after so long a time.
1997 you were administratively defrocked.

Your current commanding officer stated

However, on 14 August

You transferred to the Fleet Reserve on 30 November 1998 in the
rate of 
Retirement Authority.
months and 7 days of active service.

AEl under the provisions of the Temporary Early

At that time you had completed 17 years, 5

that it was an injustice to humiliate you

AEl after serving almost a year as a chief
In addition, you contend that it was improper to

You contend, in effect,
with the reduction to  
petty officer.
submit a revised performance evaluation, showing that you were
not recommended for promotion,
for the original evaluation in
which you were recommended for promotion.
contrary to the information contained in the investigations, you
were never convicted of hit and run was in error.
this contention, you have submitted an undated municipal court
record which shows that you were only convicted of one count of a
violation of section 14601.1 of the California Vehicle Code.
request that the entries concerning the hit and run conviction be
removed from the investigations and, in effect, that the Board
evaluate the propriety of the reduction without that charge being

You also contend that

In support of

You

5

.

You believe that the erroneous information in the

considered.
second investigation showed that it was neither fair nor
impartial.
Finally, you contend that the CO properly exercised
his discretion under regulations in effect at the time, when he
elected to frock you to chief petty officer.

the Board noted that the original

Concerning your contentions,
performance evaluation for the period ending 15 September 1996
was in error because regulations state that less than a 3.0 mark
in any evaluation category requires a non-recommendation for
promotion.
evaluation was ever accepted for file or placed in your record.
It should have been returned to the reporting senior for
correction.
period, which is signed by the CO is the only evaluation in the
record.

There is no evidence in the record that the original

As indicated, the corrected evaluation for the same

Since this is unrelated to a conviction for driving

Concerning the hit and run charge, which you contend is
erroneous, the Board noted that the municipal court record is
undated but-shows you were convicted   of a violation of the
California Vehicle Code section 14601.1.
this is a conviction for driving on a suspended or revoked
license.
under the influence or hit and run,
convicted of driving on a revoked license on another occasion.
In addition, the investigation shows that the IO discussed your
case with the San Diego County Sheriff's Department, verified
that you had been arrested on multiple charges included DUI and
hit and run, and reviewed other documentation concerning this
Therefore, the Board concluded that you have not
matter.
established that the hit and run conviction did not occur.

it apparently means you were

Research revealed that

The Board found that if the performance evaluation had properly
shown in September 1996 that you were not recommended for
promotion, you would not have been frocked and would have been
removed from the selection board list at that time.
The Board
noted the finding in the second investigation that indicates that
you were not entirely forthcoming concerning the status of your
civil case.
the Board concluded that
the actions taken against you were proper and no relief is
warranted.

Given the circumstances,

Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a

.

6

presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director